Research › Search › Judgment

Himachal Pradesh High Court · body

2005 DIGILAW 309 (HP)

VIDYA DEVI v. SALOCHNA MITTAL

2005-08-24

V.M.JAIN

body2005
JUDGMENT V.M. Jain, Judge: This Revision Petition has been filed by some of the defendants against the judgment and decree dated 17.6.2002 passed by the trial Court vide which the suit filed by Hari Krishan, Plaintiff, under Section 6 of the Specific Relief Act was decreed and a decree for possession was passed in favour of the plaintiff and against the defendants with a direction to the defendants to hand over vacant possession of the shop in dispute to the plaintiff. 2. The facts which are relevant for the decision of the present Revision Petition are that Hari Krishan, plaintiff, had filed a suit under Section 6 of the Specific Act, 1963 against the defendants. It was alleged in the said suit that the plaintiff was a tenant over the shop in dispute under the defendant and their predecessor-in-interest on monthly rent of Rs. 400/- since 1.2.1987 and was in possession thereof since then. It was alleged that on 29.3.1996 defendants No.1 to 3 had attempted to dispossesses the plaintiff from the said shop forcibly and had demolished a part thereof and had started throwing water in the shutter of the shop and had blocked the pipe of the roof so as to divert the flow of water in the shutter of the shop. It was alleged that thereupon the plaintiff had filed a suit against he said defendants for permanent injunction and in the said suit defendants No.1 to 3 had agreed to maintain status quo on 2.4.1996 and subsequently defendants No.1 to 3 had agreed to remove the debris and the other material form the roof on 19.8.1996 and on 1.10.1996 defendants No. 1 to 3 had undertaken that they would not dispossess the plaintiff from the disputed shop forcibly or illegally whereupon the plaintiff had withdrawn the said suit. It was alleged that thereupon Harish Chander Bhatnagar, predecessor-in-interest of the defendants, filed an ejectment petition against the plaintiff on 26.5.1997 in which the plaintiff was served and had filed a reply and the said petition was still pending. It was alleged that in January, 1998 said Harish Chander Bhatnagar had expired and the said shop was inherited by the defendants, being the widow, sons and daughter. It was alleged that in January, 1998 said Harish Chander Bhatnagar had expired and the said shop was inherited by the defendants, being the widow, sons and daughter. It was alleged that on 26.1.1998 defendants No.1 to 3 along with some gundas had forcibly entered in the shop and had started throwing the goods and other articles on the road from the said shop and the plaintiff was pushed out from the shop by defendants No.1 to 3 and the gundas. It was alleged that the plaintiff had gone to the Police Station and lodged a report with the police and under the influence of the defendants the police did not take any action for some time and allowed the defendants and the gundas to throw the goods from the shop. It was alleged that after throwing the goods on the road the defendants had locked the shop in question and it was only thereafter that the police visited the spot and by that time defendant No.1 to 3 and the gundas had left the spot and the police had registered a case against them. It was alleged that the dispossession of the plaintiff from the shop in question by defendants No.1 to 3 on 26.1.1998 was illegal and as such the plaintiff was entitled to recover the possession of the said shop from the defendants. It was accordingly prayed that decree for possession in respect of the shop in question be passed in favour of the plaintiff and against the defendant. The said suit is dated 27.2.1998 and was filed in the Court on 4.3.1998, i.e. within six months from the date of dispossession, which was stated to be 26.1.1998. 3. The said suit was contested by the defendants by filling a written statement admitting that the plaintiff was in possession of the said shop as a tenant since 1.12.1987 on a monthly rent of Rs. 400/-. It was denied that on 29.3.1996 the defendants had attempted to dispossess the plaintiff from the dispute premises. However, it was alleged that a rent deed was executed on 1.121987 for two years and thereafter the plaintiff was in illegal possession of the shop without making payment. It was alleged that the plaintiff had dragged the defendants in unnecessary litigation in respect of the earlier suit, since the defendants had demanded rent from the plaintiff. However, it was alleged that a rent deed was executed on 1.121987 for two years and thereafter the plaintiff was in illegal possession of the shop without making payment. It was alleged that the plaintiff had dragged the defendants in unnecessary litigation in respect of the earlier suit, since the defendants had demanded rent from the plaintiff. It was denied that on 26.1.1998 the defendants had forcibly occupied the premises. On the other hand, it was alleged that in fact on 26.1.1998 arrived at between the parties and at the request of the plaintiff the entire arrears of rent were exempted and the plaintiff himself took the articles from the shop and handed over the possession of the same to defendant No.1 in the presence of the persons from the locality. It was alleged that after having vacated the shop and taken his articles from the shop the plaintiff made a false complaint against the defendants with the police with a view to harass them and to take revenge from them. It was denied that forcible possession was taken from the plaintiff. It was further alleged that the plaintiff was also paid Rs. 10,000/- for vacating the said shop besides giving him exemption from payment of arrears of rent. It was alleged that since the period of rent deed dated 1.12.1987 had expired the plaintiff was illegally in possession of the same till it was vacated by him. 4. Replication was filed. On the pleadings of the parties, the following issues were farmed: 1. Whether the plaintiff was dispossessed from the demised premises on 26.1.1998 forcibly by the defendants as alleged, if so, its effect? OPP 2. If issue No.1 is proved in affirmative, whether the plaintiff is entitled for the decree of possession qua the demised premises as claimed? OPP 3. Whether the plaintiff had himself vacated the demised shop on 26.1.1998 on account of compromise arrived between the parties, the Arrears of rent having been exempted from payment as alleged? OPD 4. Whether the plaintiff is no longer tenant of defendants, the tenancy having come to an end after two years from the date of rent deed i.e. 1.12.1987 as alleged? OPD 5. Relief. 5. OPD 4. Whether the plaintiff is no longer tenant of defendants, the tenancy having come to an end after two years from the date of rent deed i.e. 1.12.1987 as alleged? OPD 5. Relief. 5. After hearing both the sides and perusing the record, the learned trial Court decreed the suit of the plaintiff and passed a decree for possession in favour of the plaintiff and against the defendants directing the defendants to hand over vacant possession of the said shop to the plaintiff, holding that the plaintiff was forcibly dispossessed from the demised premises on 26.1.1998 and as such the plaintiff was entitled to the decree for possession under Section 6 of the Specific Relief Act. Aggrieved against the same, some of the defendants have filed the present Revision Petition in this Court. 6. I have heard the learned counsel for the parties and have gone through the record carefully. 7. The learned counsel appearing for the defendants petitioners submitted before me that the plaintiff had himself vacated the shop in question on 26.1.1998 and had himself removed the goods from his shop and it was not a case of dispossession of the plaintiff from the said shop without consent and as such the provisions of Section 6 of the Specific Relief Act would not apply to this case. It was submitted that even otherwise from the allegations made in the plaint, it could not be said that it was a suit under Section 6 of the Specific Relief Act. It was further submitted that the criminal case registered against the defendants had ended in acquittal and as such it could not be said that the defendants had illegally dispossessed the plaintiff from the shop in question. 8. However, I find no force in these submissions of the learned counsel for the defendants-petitioners. The case of the plaintiff was that he was illegally dispossessed from the shop in question on 26.1.1998; On the other hand, the case of the defendants was that on 26.1.1998 the plaintiff had voluntarily vacated the shop in question and had handed over its vacant possession to the defendants after removing the goods there from. It is the admitted case of the parties that the FIR in this case was lodged by the plaintiff on the morning of 26.1.1998 itself at 11 a.m., as would be clear from the copy of the roznamcha Ex. It is the admitted case of the parties that the FIR in this case was lodged by the plaintiff on the morning of 26.1.1998 itself at 11 a.m., as would be clear from the copy of the roznamcha Ex. PW-6/A, according to which the report was lodged in the police station at 11 a.m. on 26.1.1998, with regard to forcible dispossession of the shop in question. Admittedly, there is no compromise deed on the record. In fact no writing of any kind was prepared nor any receipt was obtained when the amount of Rs. 10,000/- was allegedly paid to the plaintiff. In my opinion, on the facts and circumstances of the present case, it could not be said that it was a case of vacation of the said shop by the plaintiff voluntarily under a compromise or otherwise, especially when there is no writing of any kind in this regard. In the absence of any writing in this regard, in my opinion, no reliance could be placed on the story put forth by the defendants regarding voluntary vacation of the shop by the plaintiff, especially when it has come on the record that earlier in the year 1996 the plaintiff had filed a suit for permanent injunction against the defendants and order of status quo was passed on 2.4.1996 and the said suit was finally withdrawn after the defendants had undertaken not to dispossess the plaintiff from the disputed shop-forcibly and illegally. This would show that the relations between the parties were already strained and the plaintiff was apprehending forcible dispossession from the shop at the hands of the defendants. Furthermore, an eviction petition under the H.P. Rent Control Act filed by Harish Chander Bhatnagar, predecessor-in-interest of the defendants, on 26.5.19987, was already pending before the learned Rent Controller at that time i.e. on 26.1.1998. If any compromise had been arrived at between the parties, the matter could have been sorted out before the learned Rent Controller. In any case, a writing could have been obtained from the plaintiff in this regard. However, nothing of the kind was done. On the other hand, the plaintiff had lodged the report with the police on the morning of 26.1.1998 itself. In any case, a writing could have been obtained from the plaintiff in this regard. However, nothing of the kind was done. On the other hand, the plaintiff had lodged the report with the police on the morning of 26.1.1998 itself. If the plaintiff had vacated the said shop Voluntarily on 26.1.1998 it is not possible to believe that the plaintiff would lodge the report with the police on the same day at 11 a.m., claiming forcible dispossession. Furthermore, on the basis of the aforesaid roznamcha entry formal FIR Ex.DY was also registered in the Police Station. Furthermore, photographs Ex. P-8 to Ex.P-12 and negatives Ex. P-13 to Ex.P-17 proved by the plaintiff and available on the record would also clearly show that the goods are lying on the road outside the shop. This would corroborate the case of the plaintiff that he was forcibly dispossessed from the said shop by the defendants. In my opinion, the learned trial Court had rightly not placed any reliance on the testimony of the witnesses produced by the defendants that the plaintiff had vacated the shop in question of his own under some compromise, especially when there is no writing of any kind, to support of this case. 9. Since the plaintiff was in possession of the said shop as a tenant and was illegally dispossessed therefrom on 26.1.1998, in my opinion, the present suit under Section 6 of the Specific Relief Act was certainly maintainable. Reliance in this regard may be placed on the law laid down by the Honble Supreme Court in S.R. Ejaz versus The Tamil Nadu Handloom Weavers Co-operative Society Ltd. (2002(1) S.L.J. 5510. 10. The contention of the learned counsel for the defendants-petitioners that from the reading of the plaint it could not be said that it was a suit under Section 6 of the Specific Relief Act, in my opinion, is not borne out from the record, inasmuch as in the suit the plaintiff had specifically alleged that he was in possession of the shop as a tenant and ejectment petition was pending against him and that he was forcibly dispossessed from the said shop on 26.1.1998 and a such he was entitled to a decree for possession. This suit was also filed under Section 6 of the Specific Relief Act. This suit was also filed under Section 6 of the Specific Relief Act. As referred to above, he had filed the suit within six months of the date of dispossession and as such it was clearly a suit maintainable under Section 6 of the Specific Relief Act. 11. In view of the detailed discussion above, in my opinion, the learned trial Court had rightly decreed the suit of the plaintiff and no fault could be found with the same. I am further of the opinion that no case for interfering with the judgment and decree passed by the learned trial Court is made out in the present Revision Petition filed by the defendants-petitioners. 12. Accordingly, while upholding the findings of the learned trial court on all the issues and finding no merit in this Revision Petition, the same is hereby dismissed.